Opinion
Nos. 05-10-01362- CR 05-10-01363- CR 05-10-01364-CR
Opinion Filed December 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 282nd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F-0748800-S, F-1056018-S, and F-1056048-S.
Before Justices MOSELEY, LANG, and MYERS.
MEMORANDUM OPINION
Brandon Antwon Wilson appeals his fifteen-year sentence for the felony offense of aggravated robbery with a deadly weapon (appellate cause no. 05-10-01362-CR) and five-year sentences for the third degree felonies of assault, family violence (appellate cause no. 05-10-01363-CR) and violation of a protective order (appellate cause no. 05-10-01364-CR). In a single issue, Wilson asserts he was denied due process of law because the trial judge cross-examined him, called a witness to testify, and "read a police report that [was] not in evidence and not part of the record." Accordingly, Wilson contends he is entitled to a new trial as to sentencing. We affirm the trial court's judgments.
I. Background
Wilson was placed on deferred adjudication for aggravated robbery in February 2009. Alleging Wilson violated the terms of his community supervision by assaulting his girlfriend, violating a protective order, failing to pay his monthly supervision fee, and failing to make restitution, the State moved to proceed to adjudicate guilt in June 2010. The State also charged Wilson by separate indictments with assault and a protective order violation. The cases were heard together by the trial judge after Wilson waived a jury trial and entered an open plea of true to the allegations in the State's motion to adjudicate guilt and open pleas of guilty to the other two offenses. Testifying for the State, Wilson's girlfriend and a victim advocate for the Dallas County District Attorney's office provided details about the assault. Both witnesses also testified about the protective order Wilson's girlfriend obtained following an earlier assault by Wilson and that was in effect at the time of the assault. Testifying for the defense, Wilson's cousin, who raised Wilson from infancy to age six, and Wilson's sister recounted facts regarding Wilson's difficult upbringing and childhood and asked he be "given another chance." Wilson also testified and expressed remorse for the assault. Although the prosecutor parenthetically addressed the robbery during her cross-examination of Wilson, neither she nor Wilson's counsel elicited testimony concerning the robbery. After Wilson finished testifying, the trial judge asked for details about the robbery. Wilson explained his role was that of the get-away driver and it was his cousin who exhibited the weapon. The trial judge asked if "anyone knew why the State didn't prosecute" Wilson's cousin, and Wilson's girlfriend, who was sitting in the gallery, replied she did. At the trial judge's direction, Wilson's girlfriend took the witness stand and testified. When Wilson's girlfriend concluded her testimony, the prosecutor offered the police report of the robbery, but the trial judge replied he already had it. Each side then rested and closed.III. Due Process of Law
Wilson's sole issue stems from the trial judge's inquiry into the facts of the aggravated robbery. Wilson maintains the trial judge "abandoned his neutrality" and, as a result, he received "three sentences far above the minimum statutory range." Wilson did not raise this complaint at trial. He acknowledges that generally a complaint not raised at trial is not preserved for appellate review. See Tex. R. App. P. 33.1 (requiring objection at trial to preserve error for appellate review). Accordingly, he argues no objection was necessary because the judge's actions constituted fundamental error. See Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality op.) (noting Texas Rule of Evidence 103(d) allows appellate court to take "notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court."). The State responds, inter alia, that the judge's actions were proper and necessary to determine an appropriate sentence for Wilson. As such, the State argues, they were not "so egregious as to deem the judge biased" and do not constitute fundamental error. See Hernandez v. State, 268 S.W.3d 176, 184 (Tex. App.-Corpus Christi 2008, no pet.) (issue of judicial bias may be raised for first time on appeal only if trial judge's conduct was so egregious as to deem him biased).A. Standard of Review and Applicable Law
A trial judge has broad discretion over the conduct of his proceedings and may question a witness to obtain information, clarify a point, or have an answer that could not be heard repeated. See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 199 (Tex. Crim. App. 2003); Stewart v. State, 438 S.W.2d 560, 561-62 (Tex. Crim. App. 1969); Williams v. State, 89 S.W.3d 325, 328 (Tex. App.-Texarkana 2002, pet. ref'd). The judge's discretion, however, is not unfettered, and in questioning a witness, the judge must maintain a neutral and detached attitude so as to not violate a defendant's right, under the due process clause of the United States Constitution, to an impartial judge. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Stewart, 438 S.W.2d at 562; Avilez v. State, 333 S.W.3d 661, 673 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd). "Absent a clear showing of bias, a trial court's actions will be presumed to have been correct." Brumit, 206 S.W.3d at 645. In determining on appeal whether a clear showing of bias has been made, we review the entire record. See Avilez, 333 S.W.3d at 673-75; see also Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd).B. Application of Law to Facts
Wilson argues that by "independently inquir[ing] into the facts underlying the aggravated robbery offense, even though neither party had deemed that line of inquiry relevant to the sentencing issues at hand," and reading a police report that the record does not reflect was admitted into evidence, the trial judge went beyond asking "questions for clarification" and abandoned his neutrality. We cannot agree. Rather, we conclude the judge acted within his discretion in questioning Wilson and Wilson's girlfriend. In determining a proper sentence, a judge must consider all relevant evidence and tailor the sentence to the particular offense and defendant. See Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). The record shows the trial judge heard testimony concerning the assault and protective order, as well as testimony concerning Wilson's upbringing and childhood, but did not hear any testimony concerning the circumstances of the robbery. However, the evidence as to the robbery was as relevant to "the sentencing issues at hand" as the evidence concerning the other two offenses and Wilson's background. See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (West Supp. 2011) (circumstances of offense for which defendant is being tried relevant to sentencing). By taking the actions he did, the trial judge learned Wilson did not act alone and did not wield the deadly weapon. Those are factors that are certainly favorable to Wilson. Moreover, a review of the entire record reveals nothing indicating the judge, in taking the actions he did, became an advocate for the State or did not consider the full range of punishment. To the contrary, Wilson's sentences, on the lower end of the punishment range, reflect the judge clearly considered the entire punishment range. See Tex. Penal Code Ann. § 12.32 (West 2011) (punishment range for first degree felony is life or no more than ninety-nine years or less than five), § 12.34 (punishment range for third degree felony is no more than ten years or less than two). On this record, we conclude no error is shown. See Moreno v. State, 900 S.W.2d 357, 359-60 (Tex. App.-Texarkana 1995, no pet.) (questions by trial judge-some for purpose of clarification, some "prosecutorial in nature," and some "defense oriented"-within permissible bounds and not egregious such that fundamental error occurred). We resolve Wilson's sole issue against him.IV. Conclusion
Having resolved Wilson's sole issue against him, we affirm the trial court's judgments. The prosecutor mentioned the robbery as she cross-examined Wilson about the assault on his girlfriend:
PROSECUTOR: . . . And then on this time, because you thought that you were going to have to go back to prison over a case where you pulled a shotgun on a clerk at PSC store — MetroPCS store, you decided to beat down to the ground the mother of your five month old daughter in front of her three year-old son, correct?
WILSON: Correct.
(Italics added). No other mention of the robbery was made.